[Federal Register Volume 76, Number 107 (Friday, June 3, 2011)]
[Notices]
[Pages 32200-32202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13829]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL -9314-7]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to Montgomery Township, NJ

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The EPA is hereby granting a project waiver of the Buy 
American requirements of ARRA Section 1605 under the authority of 
Section 1605(b)(2) [manufactured goods are not produced in the United 
States in sufficient and reasonably available quantities and of a 
satisfactory quality] to Montgomery Township, New Jersey (the 
Township), for the purchase of specific foreign manufactured immersed 
hollow fiber ultrafiltration membrane cassettes, ZeeWeed[supreg] 500D, 
which are the effluent filtration component of the Membrane Bioreactor 
(MBR) for the Skillman Village Wastewater Treatment Plant (WWTP) 
upgrade project. The ZeeWeed[supreg] 500D immersed ultrafiltration 
membrane cassettes are manufactured outside of the United States by GE 
Water & Processes Technologies (GEW&PT), in Oroszlany, Hungary. The 
design and specifications of the Township's proposed Skillman Village 
WWTP upgrade project were based on the recommendations provided by an 
engineering study and pilot testing conducted in 2005, which concluded 
that the WWTP facility be upgraded with a MBR process.
    This is a project specific waiver and only applies to the use of 
the specified product for the ARRA project being proposed. Any other 
ARRA project that may wish to use the same product must apply for a 
separate waiver based on project specific circumstances. Based upon 
information submitted by the Township and its consulting engineer, EPA 
has concluded that there are currently no domestic manufactured 
submerged hollow fiber ultrafiltration MBR membranes available in 
sufficient and reasonable quantity and of a satisfactory quality to 
meet the Township's project design and performance specifications and 
that a waiver is justified. The Regional Administrator is making this 
determination based on the review and recommendations of the State 
Revolving Fund Program Team. The Assistant Administrator of the Office 
of Administration and Resources Management has concurred on this 
decision to make an exception to Section 1605(a) of ARRA. This action 
permits the purchase of foreign manufactured submerged hollow fiber 
ultrafiltration membrane cassettes by the Township, as specified in its 
January 18, 2011 waiver request and February 4, 2011 supplemental 
submittal to EPA.

DATES: Effective Date: June 3, 2011.

FOR FURTHER INFORMATION CONTACT: Alicia Reinmund-Mart[iacute]nez, 
Environmental Engineer, (212) 637-3827, State Revolving Fund Program 
Team, Division of Environmental Planning and Protection, U.S. EPA, 290 
Broadway, New York, NY 10007.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Sections 1605(c) and 
1605(b)(2), the EPA hereby provides notice that it is granting a 
project waiver of the requirements of Section 1605(a) of Public Law 
111-5, Buy American requirements, to the Township for the purchase of 
ZeeWeed[supreg] 500D immersed hollow fiber ultrafiltration membrane 
cassettes manufactured in Hungary by GEW&PT that meet the Township's 
design and performance specifications of its Skillman Village WWTP 
upgrade project. EPA has evaluated the Township's basis for the 
procurement of the foreign made immersed hollow fiber ultrafiltration 
membrane cassettes. Based upon information submitted by the Township 
and its consulting engineer, EPA has concluded that there are currently 
no domestic manufactured immersed hollow fiber ultrafiltration membrane 
cassettes available in sufficient and reasonable quantity and of a 
satisfactory quality to meet the Township's project design and 
performance specifications.
    Section 1605 of the ARRA requires that none of the appropriated 
funds may be used for the construction, alteration, maintenance, or 
repair of a public building or a public works project unless all of the 
iron, steel, and manufactured goods used in the project are produced in 
the United States, or unless a waiver is provided to the recipient by 
the head of the appropriate agency, here the EPA. A waiver may be 
provided under Section 1605(b) of ARRA if EPA determines that (1) 
Applying these requirements would be inconsistent with public interest; 
(2) iron, steel, and the relevant manufactured goods are not produced 
in the United States in sufficient and reasonably available quantities 
and of a satisfactory quality; or (3) inclusion of iron, steel, and the 
relevant manufactured goods produced in the United States will increase 
the cost of the overall project by more than 25 percent.
    EPA has determined that the Township's waiver request is timely 
even though the request was made after the construction contract was 
signed. Consistent with the direction of the Office of Management and 
Budget (OMB) regulations at 2 CFR 176.120, EPA has evaluated the 
Township's request to determine if the request, though made after the 
contract date, can be treated as if it were timely made. EPA will 
generally regard waiver requests with respect to components that were 
specified in the bid solicitation or in a general/primary construction 
contract as ``late'' if submitted after the contract date.
    However, in this case, EPA has determined that the Township's 
request may be treated as timely because the need for a waiver was not 
foreseeable at

[[Page 32201]]

the time the contract was signed. The Township submitted this waiver 
request after the contract date because on June 22, 2009, GEW&PT had 
provided a Buy American compliance certification letter to the Township 
indicating that the MBR system would comply with ARRA Section 1605 
pursuant to the ``substantial transformation'' test. At that time, the 
Township considered this rationale reasonable and anticipated full 
compliance with the Buy American provisions of ARRA. The Township did 
not determine the need for a waiver until on or about May 25, 2010, 
when GEW&PT notified the Township that the ZeeWeed[supreg] 500D 
immersed hollow fiber ultrafiltration membrane cassettes of its MBR 
system did not comply with the substantial transformation test and that 
the Township should seek a waiver from Buy American requirements based 
on no availability of domestic manufactured membrane cassettes that 
meet project specifications. Accordingly, EPA will evaluate the request 
as a timely request.
    The Township's Skillman Village WWTP upgrade project includes the 
installation of a MBR system that will enable the WWTP's effluent 
quality to meet the new stringent effluent limitations stipulated in 
its New Jersey Pollutant Discharge Elimination System (NJPDES) 
wastewater discharge permit. The documentation provided by the Township 
indicates that with the exception of the actual ZeeWeed[supreg]500D 
membrane cassettes, GEW&PT will fabricate and assemble all of the MBR 
system components in its Minnetonka, Minnesota facility. The 
ZeeWeed[supreg] 500D immersed hollow fiber ultrafiltration membrane 
cassettes are manufactured in Hungary and will be shipped directly from 
the manufacturing facility in Hungary to the project site.
    The Township is requesting a waiver for the purchase of 
ZeeWeed[supreg] 500D immersed hollow fiber ultrafiltration membrane 
cassettes because there are no submerged hollow fiber ultrafiltration 
MBR membranes manufactured in the United States that meet the design 
specifications for the project. Based on an engineering study and pilot 
testing conducted in 2005, the Township identified MBR technology as 
the most appropriate and best demonstrable technology for the Skillman 
Village WWTP upgrade project. During the design and bidding phase of 
the project, the Township evaluated multiple manufacturers of MBR 
systems, and fully anticipated, by way of manufacturer/supplier 
confirmation, that the specified GEW&PT membrane cassettes would be 
fully compliant with ARRA Buy American requirements.
    Upon learning from GEW&PT on May 25, 2010, that the ZeeWeed[supreg] 
500D membranes would not meet the substantial transformation test and 
therefore, is not in compliance with ARRA Buy American requirements, 
the Township repeated its efforts to find domestic manufactured 
ultrafiltration hollow fiber membranes that would meet the Skillman 
Village WWTP upgrade project specifications. The Township's research 
confirmed that no additional manufacturers of such membranes suitable 
for the WWTP project had entered the North American market since the 
design phase of the project The Township's research revealed that, the 
MBR market is dominated by four manufacturers of MBR systems, including 
General Electric (Zenon), Kubota, Siemens and Koch-Puron, and all four 
companies manufacture their cassettes abroad. Of these manufacturers, 
only General Electric and Siemens manufacture the specified immersed 
hollow fiber ultrafiltration membrane cassettes. Therefore, the 
Township concluded that there is no domestically available immersed 
hollow fiber ultrafiltration membrane cassette and that a waiver from 
Buy American requirements would be required. Based on the technical 
evaluation of the Township's waiver request and supporting 
documentation as well as the additional research conducted by EPA's 
national contractor, the Township's claim that there are no submerged 
hollow fiber ultrafiltration MBR membranes manufactured in the United 
States that meet the design specification is supported by the available 
evidence.
    The purpose of the ARRA is to stimulate economic recovery in part 
by funding current infrastructure construction, not to delay projects 
that are already ``shovel ready'' by requiring entities, such as the 
Township, to revise their design standards and specifications and 
potentially choose a more costly, less efficient project. The 
imposition of ARRA Buy American requirements on such projects otherwise 
eligible for State Revolving Fund assistance would result in 
unreasonable delay and potentially the cancellation of this project as 
sited. The delay or cancellation of this construction would directly 
conflict with the fundamental economic purpose of ARRA, which is to 
create or retain jobs.
    The April 28, 2009, EPA Headquarters Memorandum, ``Implementation 
of Buy American provisions of Public Law 111-5, the `American Recovery 
and Reinvestment Act of 2009''' (Memorandum), defines: reasonably 
available quantity as ``the quantity of iron, steel, or the relevant 
manufactured good is available or will be available at the time needed 
and place needed, and in the proper form or specification as specified 
in the project plans and design,'' and satisfactory quality as ``the 
quality of iron, steel, or the relevant manufactured good as specified 
in the project plans and designs.''
    The Region 2 State Revolving Fund Program Team has reviewed this 
waiver request and has determined that the supporting documentation 
provided by the Township establishes both a proper basis to specify the 
particular good required and that the manufactured good is not 
available from a producer in the United States to meet the design 
specifications for the proposed project. The information provided is 
sufficient to meet the criteria listed under Section 1605(b) of ARRA, 
OMB regulations at 2 CFR 176.60-176.170, and in the EPA Headquarters 
April 28, 2009 Memorandum: Iron, steel, and the manufactured goods are 
not produced in the United States in sufficient and reasonably 
available quantities and of a satisfactory quality. The basis for this 
project waiver is the authorization provided in Section 1605(b)(2). Due 
to the lack of production of this product in the United States in 
sufficient and reasonably available quantities and of a satisfactory 
quality in order to meet the Township's technical specifications, a 
waiver from the Buy American requirement is justified.
    The Administrator's March 31, 2009, Delegation of Authority 
Memorandum provided Regional Administrators with the Authority to issue 
exceptions to Section 1605 of ARRA within the geographic boundaries of 
their respective regions and with respect to requests by individual 
grant recipients. Having established both a proper basis to specify the 
particular good required for this project, and that this manufactured 
good was not available from a producer in the United States, the 
Township is hereby granted a waiver from the Buy American requirements 
of Section 1605(a) of Public Law 111-5 for the purchase of the 
ZeeWeed[supreg] 500D immersed hollow fiber ultrafiltration membrane 
cassettes, as specified in its January 18, 2011 waiver request and 
February 4, 2011 supplemental submittal to EPA. This supplementary 
information constitutes the detailed written justification required by 
Section 1605(c) for waivers ``based on a finding under subsection 
(b).''

    Authority: Pub. L. 111-5, Section 1605.


[[Page 32202]]


    Dated: April 25, 2011.
Judith A. Enck,
Regional Administrator, Environmental Protection Agency, Region 2.
[FR Doc. 2011-13829 Filed 6-2-11; 8:45 am]
BILLING CODE 6560-50-P